Over the course of Friday, the circumstances of Monday’s FBI search of Donald Trump’s home at Mar-a-Lago have come into much sharper focus, which makes them look much worse for the former president.
The unsealed search and seizure warrant shows that it was carried out, in part, under the Espionage Act, a set of statutes dating to 1917 that have been used aggressively to go after leakers, whistleblowers and the WikiLeaks founder, Julian Assange. The code quoted in the warrant carries a maximum penalty of 10 years’ imprisonment.
The inventory of material taken out of Mar-a-Lago leaves in no doubt the importance of the documents discovered there. They included top secret and “sensitive compartmented information” (SCI) meaning there were restrictions on its circulation over and above its top secret status. It should normally only be in a special facility, a SCIF. A SCIF was established at Mar-a-Lago, but it operated as a secure facility only during the Trump presidency.
Altogether, there are five sets of top secret documents listed, three sets of secret, and three sets of confidential documents, as well as binders of photos, and intriguingly, information about the French president, Emmanuel Macron.
It was the warrant that was unsealed by court order on Friday, not the supporting affidavit from law enforcement which would have provided a lot more detail. So there is no confirmation one way or another on the Washington Post report that there were nuclear weapons documents among the trove.
Nuclear or not, that is an awful lot of classified stuff, especially in view of the fact that 15 boxes of documents had already been removed in January after discussions between the National Archives and Trump’s representatives, and then again in June under a grand jury subpoena.
The papers removed on Monday were held back even after that subpoena, and their continuing presence at Mar-a-Lago was confirmed to the FBI by an informant. In the wake of all that focus on the documents, the possibility that they were retained by accident is extremely small.
It also looks significant that, in seeking a warrant, the FBI did not invoke code 1924, which is normally used in the case of government employees who hang on to documents they should not have. Instead the justice department used code 2071, relating to the “concealment, removal, or mutilation” of documentation, and code 1519, concerning the “destruction, alteration, or falsification of records in federal investigations”.
“That suggests that the government has reason to believe that President Trump has done more than just hold on to these documents,” Stephen Vladeck, a law professor at the University of Texas, said.
The Trump defence strategy appears to be twofold. One part is the catch-all claim that anything bad must have been planted by the FBI. That is an extraordinary scorched-earth path to take in the absence of any evidence, particularly considering there has already been an attempt by a Trump supporter on a FBI field office leading to the attacker being killed by police.
It may also be legally untenable as there appears to have been footage of the search that was available to Trump’s representatives on closed circuit television at the time. The Trump camp may not care about that, of course, as long as it muddies the waters.
The second strand of the Trump defence, quite contradictory to the first, is that while he was still in the White House, he declassified all the material in question by presidential fiat.
That would be unusual to say the least, and would not be how declassification is supposed to work.
“Whatever [the president’s] ‘powers’ might be to declassify docs, there are good policy and practical reasons for them to follow a process, and for that process to be documented and reflected on the document markings themselves,” Asha Rangappa, a former FBI special agent, said on Twitter.
The Trump defence counsel could argue that is not how Trump rolled. His style was to do things informally. But to a great extent it is a moot point anyway. The Espionage Act predates the system of classification introduced by executive order after the second world war, so it makes no reference to it. It talks about “national defence” information. It does not distinguish between classified and declassified materials – unauthorized retention of any document relevant to the statute remains a crime.
It is, however, a leap from Trump having a poor legal defence to the prospect of his arrest or criminal charges, steps that would have dramatic political consequences to say the very least.
Although it is called the Espionage Act, it does not necessarily mean that Trump took the documents with the intention of passing them to a foreign power. The statute also covers more minor offences – for example, someone who is lawfully in possession of documents, photos and so on and passes them to anyone not entitled to receive it, or fails to hand it over to officials who ought to have it.
It can also apply to someone who “through gross negligence permits the same to be removed from its proper place of custody” and fails to report it.
Fines can be imposed, and the justice department may be satisfied with getting the secret documents back under lock and key.
“I still think an arrest and a prosecution are low probability,” Vladeck said. “From the government’s perspective, it seems like at least part of this exercise was about just removing things from President Trump’s possession, and that’s been accomplished, whereas arresting him and prosecuting him raise a whole different slew of political complications.”
One of three statutes cited in the search warrant, code 2071, contains a clause stating that anyone who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys” government documents shall be “disqualified from holding any office under the United States”. Here again, Vladeck is sceptical over whether this can be enforced for this kind of offence.
“There are questions about whether Congress can disqualify someone from the presidency through such a statute,” he said. “I think there would be a serious constitutional challenge to Congress’s power to disqualify by statute unrelated to the 14th amendment – unrelated to insurrection.”
